TaxTMI 
TaxTMI 
2017 (4) TMI 1564
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....of Babri Masjid. We are concerned in this case with two FIRs lodged on 6th December, 1992. The first viz. Crime No. 197 of 1992, is against lakhs of kar sewaks alleging the offences of dacoity, robbery, causing of hurt, injuring/defiling places of public worship, promoting enmity between two groups on grounds of religion, etc. The Indian Penal Code offences were, therefore, Under Sections 153-A, 295, 297, 332, 337, 338, 395 and 397. The second FIR viz. FIR No. 198 of 1992 was lodged against eight persons named therein-Mr. L.K. Advani, Mr. Ashok Singhal, Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi, Mr. Giriraj Kishore and Mr. Vishnu Hari Dalmia, two of whom are dead due to passage of time viz. Mr. Ashok Singhal and Mr. Giriraj Kishore. The FIR alleges offences Under Sections 153-A, 153-B and Section 505 Indian Penal Code. 46 further FIRs pertaining to cognizable offences and 1 FIR pertaining to non-cognizable offences were also lodged. Initially, a Special Court set up at Lalitpur was to try these cases but subsequently notifications were issued by the State Government, after consultation with the High Court, dated 8th September, 1993 whereby the....
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....n Das, Mahatyagi, Activist, BJP, Shri Vinay Kumar Rai, Hindu activist, Shri Kamlesh Tripathi @ Sait Dubey, Bajrang Das, activist, Shri Gandhi Yadav, BJP activist, Shri Hargovind Singh, Hindu activist, Shri Vijay Bahadur Singh, Chief Security Officer, Shri Krishan Temple, Mathura, UP, Shri Navin Bahi Shukla, Hindu activist, Shri Ramesh Pratap Singh, BJP activist, and Acharya Dharmender Dev, Leader, Bajrang Dal constitutes offences Under Section 120-B Indian Penal Code read with 153-A, 153-B, 295, 295-A and 505 Indian Penal Code and substantive offences Under Section 153-A, 153-B, 295, 295-A and 505 Indian Penal Code. 3. On 8th October, 1993, the State Government amended the notification dated 9th September, 1993 inserting FIR No. 198 of 1992 against the eight persons aforesaid so that all 49 cases could be tried by the Special Court, Lucknow. To cut a long story short, since this amendment notification did not comply with Section 11(1) proviso of the Code of Criminal Procedure, 1973 viz. that consultation with the High Court was lacking, this notification was ultimately struck down. 4. At this point, it is important to note that the CBI filed a supplementary chargesheet against th....
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....this conspiracy comes to the remaining Accused gradually, slowly and this knowledge is discernable from what becomes clear by their speeches and by actions done by them. In regard to criminal conspiracy has been propounded by the Hon'ble Supreme Court in case reported as Kehar Singh v. State of Delhi 1988 SCC (Criminal) 711 where under whatever works are of conspiracy is entrusted to a person he does not and a person does not have the knowledge of the work done by another person till that work is not completed. In such a conspiracy all the persons who are connected with it they are held guilty for activities unlawfully done in the cause of the conspiracy because all of them have taken a decision to act in that way as has been propounded by ruling in the following cases. (1) Ajay Agarwal v. Union of India - 1993 SCC (Criminal) Page 961 (2) P.K. Narayan v. State of Kerala - (1995) SCC 142 (3) State of Maharashtra v. Som Nath Thapar - 1996 Cr.l.J. 2448 According to the decisions of the Hon'ble Supreme Court as above, though Sri Kalyan Singh at the time of occurrence or Accused R.N. Srivastava and Sri D.B. Rai were not present even then they are found prima facie guilty....
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....i/Babri Masjid was commenced by the Accused from 1990 and it was completed on 06.12.1992 Sri Lal Krishan Advani and others at different times and at different places made schemes of criminal conspiracy of demolishing the above disputed structure. Hence I find prima facie basis on the strength of evidence to charge Accused S/Sri Bala Saheb Thackeray, Lal Krishna Advani, Kalyan Singh, Ashok Singhal, Vinay Katiyar, Moreshwar Save, Pawan Kumar Pandey, Brij Bhushan Saran Singh, Jai Bhagwan Goe, Ms. Uma Bharti, Ms. Sadhwi Ritambhra, Maharaj Sami Sakshi, Murli Manohar Joshi, Giri Raj Kishore Vishnu Hari Dalmia, Champat Rai Bansal, Om Prakash Pandey, Satish Pradhan Mahant Avaidh Nath, Dharam Das, Mahant Nritya Gopal Das, Maha Mandaleshwar Jagdish Muni, Dr. Ram Vilas Vedanti, Baikunth Lal Sharma @ Prem Param Hans Ram Chandra Das, Smt. Vijay Raje Scindia, and Dr. Satish Kumar Nagar for offences Under Section 147/153-A/153-B/295-A/505 of Indian Penal Code read with Section 120-B of Indian Penal Code. 5. Criminal Revision Petitions were filed against the order dated 9th September, 1997. By a judgment dated 12th February, 2001, delivered by the High Court of Allahabad, Lucknow Bench, it was he....
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....sed thereafter on 12th February, 2008. 8. From this it can be seen that the order dated 12th February, 2001 is final and can be regarded as res judicata. Given that the State Government rejected the request for curing the defect in the notification dated 8th October, 1993, the CBI, instead of challenging the rejection, filed a supplementary charge sheet against the 8 Accused persons for offences Under Sections 153A, 153B, 505 read with Sections 147 and 149 Indian Penal Code before the Judicial Magistrate at Rae Bareilly. Charges were framed under these Sections against the said Accused persons. Insofar as the other group of 13 persons is involved, again, for reasons best known to the CBI, the CBI did not proceed against them at all. 9. By an order dated 4th May, 2001, the Special Court dropped proceedings against 21 persons; namely, eight Accused persons being Mr. L.K. Advani, Mr. Ashok Singhal (deceased), Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi, Mr. Giriraj Kishore (deceased), Mr. Vishnu Hari Dalmia, and 13 Accused persons being Mr. Bala Saheb Thackeray (deceased), Mr. Kalyan Singh, Mr. Moreshwar Save (deceased), Mr. Champat Rai Bansal, M....
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....er Section 120-B Indian Penal Code) in respect of Sections 153-A, 153-B and 505 Indian Penal Code against Accused of Crime No. 198 of 1992 does not appear to be of any significant consequence when Sections 147 and 149 Indian Penal Code have already been added. Similarly if the accusation regarding criminal conspiracy punishable Under Section 120-B Indian Penal Code has not been invoked against the eight main leaders then how it can be invoked against rest 13-1=12 leaders. The accusations against these remaining 13 Accused who have also been found to be within the ambit of Crime No. 198 of 1992, have also to be same because they were also sharing the same dais at Ram Katha Kunj with those 8 persons. Finally, therefore, this submission also lacks merit. 10. It was further held that if the CBI had any evidence of conspiracy it can file a supplementary charge sheet before the Court at Rae Bareilly which was seized of Crime No. 198 of 1992. Holding that from the very beginning two separate FIRs were filed because of two different places of occurrence and different nature of accusations, the judgment then went on to impugn the CBI's preparing a joint charge-sheet for all 49 FIRs a....
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....2001 and the impugned judgment upheld the said judgment dated 4th May, 2001, CBI's appeal ought to be dismissed. Since the trial against the 8 Accused is proceeding at Rae Bareilly, no question of a joint trial before the Special Court at Lucknow can arise at this stage in view of the final and binding decision of this Court dismissing the appeal against the judgment dated 12th February, 2001. According to learned senior Counsel, Article 142 of the Constitution cannot be used by this Court to transfer proceedings against the aforesaid 8 Accused persons from Rae Bareilly to Lucknow in view of the fact that the fundamental rights guaranteed to the aforesaid 8 Accused persons Under Article 21 of the Constitution would otherwise be infringed inasmuch as a right of appeal from the learned Magistrate, Rae Bareilly to the Sessions Court would be taken away. The learned senior Counsel also referred to Section 407 (1) of the Code of Criminal Procedure by which it was clear that an order of transfer from one Special Judge to another within the same State would be covered by the aforesaid provision and could only be done by the High Court of the concerned State in which both the lower Cou....
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....lready arrayed as Accused insofar as the charge of criminal conspiracy was concerned, which would be gone into by the Special Judge, Lucknow, while dealing with the offences made out in FIR No. 197 of 1992. In this regard also, we are of the view that the impugned judgment in holding to the contrary is not correct. 15. The impugned judgment also artificially divided offences and offenders into two groups which did not follow from the judgment dated 12th February, 2001. On the contrary, the said judgment having upheld the joint charge sheet and having prima facie found a case of criminal conspiracy being made out, this could not have been held contrary to the said judgment. Further, the impugned judgment contradicts itself when it says that the 21 Accused persons form one group in several places, whereas the very same judgment in paragraph 31 thereof clearly made a distinction between the 8 Accused and the other group of 13 accused. It went on to say: Another submission on behalf of the CBI is that in respect of S/Sri Bala Saheb Thackerey, Kalyan Singh and Satish Pradhan, the learned lower court has dealt with very concisely and has not given sufficient reasons for treating them ....
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....of Criminal Procedure in the ongoing trial. No prejudice will be caused to the Accused as they have the right to recall witnesses already examined either in Rae Bareilly or in Lucknow for the purpose of cross-examination. The Court of Sessions at Lucknow will have due regard to Section 217(a) of the Code of Criminal Procedure so that the right to recall is not so exercised as to unduly protract the trial. 17. It remains to deal with some of the arguments by Shri K.K. Venugopal, learned senior Counsel. According to learned senior Counsel, our powers Under Article 142 cannot be used to supplant the law. Article 142 is set out hereunder: 142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.--(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2)....
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.... portion of the judgment by exercise of powers Under Article 142 of the Constitution as against the law declared. The directions of the Court Under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.[para 12] 19. Article 142(1) of the Constitution of India had no counterpart in the Government of India Act, 1935 and to the best of our knowledge, does not have any counterpart in any other Constitution world over. The Latin maxim fiat justitia ruat caelum is what first comes to mind on a reading of Article 142 - Let justice be done though the heavens fall.1 This Article gives a very wide power to do complete justice to the parties before the Court,....
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....g another notification after consulting the High Court. Equally, if the refusal of the State Government to cure this technical defect had been challenged by the CBI in the High Court, and set aside with a direction to issue a notification curing the defect, a joint trial at Lucknow would have been well on its way and may even have been concluded by now. No selective supplementary charge sheet filed by the CBI at Rae Bareilly splitting the trial would then have been necessary. What is being done by us today is only to remedy what was expected by the Allahabad High Court to have been done shortly after its judgment dated 12th February, 2001. 21. In the Antulay judgment, Section 7(1) of the Criminal Law Amendment Act, 1952, was under consideration. Section 7(1) is reproduced herein below: 7. Cases triable by Special Judges.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), or in any other law the offences specified in Sub-section (1) of Section 6 shall be triable by Special Judges only. 22. The majority judgment of Mukharji, J., in paragraph 24, adverts to this Section and emphasises the fact that only Special Judges are to try certain o....
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....s Court, and from the Sessions Court to the High Court could be taken away under the procedure established by law, i.e., by virtue of Section 407 (1) and (8) if the case is required to be transferred from the Magistrate at Rae Bareilly to the High Court itself. Hence, Under Section 407, even if 2 tiers of appeal are done away with, there is no infraction of Article 21 as such taking away of the right of appeal is expressly contemplated by Section 407(1)(iv) read with Section 407(8). In the circumstances, Antulay's judgment which dealt with the right of a substantive appeal from a Special Judge to the High Court being taken away by an order of transfer contrary to the non obstante Clause in Section 7(1) of the Criminal Law Amendment Act, 1952 would not apply in the facts and circumstances before us. 25. That Article 142 can be used for a procedural purpose, namely, to transfer a proceeding from one Court to another does not require much argument. However, Shri Venugopal relied upon Sections 406 and 407 of the Code of Criminal Procedure, which are set out hereinbelow: 406. Power of Supreme Court to transfer cases and appeals.-- (1) Whenever it is made to appear to the Supreme ....
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....nal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. (3) Every application for an order under Sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such application is made by an Accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under Sub-section (7). (5) Every Accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordi....
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....has only been followed in the breach as less than a hundred witnesses have yet been examined. Any number of adjournments been taken by the CBI as well as the other persons. One other disturbing feature is the fact that the Special Judge designated by the notification to carry on the trial at Rae Bareilly has been transferred a number of times, as a result of which the matter could not be taken up on the dates fixed. This being the case, while allowing the appeal of the CBI and setting aside the impugned judgment, we issue the following directions: i. The proceedings viz. Crime No. 198/92, RC. 1(S)/92/SIC-IV/ND in the Court of the Special Judicial Magistrate at Rae Bareilly will stand transferred to the Court of Additional Sessions Judge (Ayodhya Matters) at Lucknow. ii. The Court of Sessions will frame an additional charge Under Section 120-B against Mr. L.K. Advani, Mr. Vinay Katiar, Ms. Uma Bharati, Ms. Sadhvi Ritambara, Mr. Murli Manohar Joshi and Mr. Vishnu Hari Dalmia. The Court of Sessions will frame additional charges Under Section 120-B and the other provisions of the Penal Code mentioned in the joint charge sheet filed by the CBI against Mr. Champat Rai Bansal, Mr. Sat....